Vijay Pal v. Umed Singh

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH Date of Decision : 19.12.2024 VIJAY PAL .... Petitioner

VERSUS

UMED SINGH .... Respondent CORAM : HON'BLE MRS. JUSTICE ALKA SARIN Present :

Mr. Surender Lamba, Advocate for the petitioner. Mr. Manish Mehta, Advocate for the respondent. ALKA SARIN, J. (ORAL) 1.

The present revision petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 16.09.2021 (Annexure P-4) whereby an application filed by plaintiff-respondent herein under Order 41 Rule 27 of the Code of Civil Procedure, 1908 for leading additional evidence has partly been allowed by the learned Additional District Judge, Narnaul in a pending appeal being CA/153/2019. 2.

Brief facts relevant to the present lis are that the plaintiffrespondent herein filed a suit for specific performance of contract of sale dated 28.02.2011 executed by the defendant-petitioner in his favour for sale of 160/2501 share in land comprised in Khewat No.16 Khatoni No.16 measuring 125 Kanals 1 Marla as per jamabandi for the year 2005-06 situated within revenue estate of Village Madhogarh, Tehsil and District Mahendergarh. The suit was dismissed by the Trial Court vide judgment and

-2decree dated 06.02.2016. Aggrieved by the same, an appeal was preferred by the plaintiff-respondent on 29.02.2016. During the pendency of the appeal, on 14.11.2019, an application was filed by the plaintiff-respondent for leading additional evidence (Annexure P-2). Vide the said application the plaintiff-respondent had sought to bring on record the following documents : "a. Bank account passbook and bank deposit receipts dated 28.02.2012 and 15.03.2012.

b.

Copy of jamabandi for the year 2005-06.

c. Copy of ration card."

The defendant-petitioner filed reply to the said application and contested the same. The First Appellate Court vide the impugned order dated 16.09.2021 partly allowed the application. Hence, the present revision petition. 3.

Learned counsel for the defendant-petitioner would contend that the impugned order is bereft of any reasoning and as per the law laid down in the judgment of the Hon'ble Supreme Court in the case of Malayalam Plantations Ltd. Vs. State of Kerala & Anr. [2011 (3) RCR (Civil) 609] if an application is filed under Order 41 Rule 27 CPC in a pending appeal, it is incumbent on the part of the Appellate Court to consider the same at the time of hearing it on merits so as to find out whether the documents or evidence sought to be adduced have any relevance/bearing on the issues involved. The learned counsel has further relied upon the observations of the Hon'ble Supreme Court in the case of Malayalam Plantations Ltd. (supra) which read as under :

-3- "11) If any petition is filed under Order 41 Rule 27 in an appeal, it is incumbent on the part of the appellate Court to consider at the time of hearing the appeal on merits so as to find out whether the documents or evidence sought to be adduced have any relevance/bearing in the issues involved. It is trite to observe that under Order 41, Rule 27, additional evidence could be adduced in one of the three situations, namely, (a) whether the trial Court has illegally refused the evidence although it ought to have been permitted; (b) whether the evidence sought to be adduced by the party was not available to it despite the exercise of due diligence; (c) whether additional evidence was necessary in order to enable the Appellate Court to pronounce the judgment or any other substantial cause of similar nature. It is equally well-settled that additional evidence cannot be permitted to be adduced so as to fill in the lacunae or to patch up the weak points in the case."

4.

Per contra, the learned counsel for the plaintiff-respondent would contend that the application has only been allowed partly and therefore the impugned order is innocuous in nature. 5.

Heard.

-46.

In the present case the First Appellate Court has allowed the application under Order 41 Rule 27 CPC in a perfunctory manner. The impugned order is bereft of any reasoning as to why the application has been allowed at the appellate stage.

7.

Order 41 Rule 27 CPC reads as under :

"27. Production of additional evidence in Appellate Court - (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if - (a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or (aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or (b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.

-5-

(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission"

8.

Hon'ble Supreme Court in the case of Malayalam Plantations Ltd. (supra) has held that it is incumbent on the part of the Appellate Court to consider the application at the time of hearing of the appeal on merits. It has further been held that additional evidence cannot be permitted to be adduced so as to fill in the lacunae or to patch up the weak points in the case. 9.

Still further, in the case of Union of India Vs. Ibrahim Uddin & Anr. [2012(4) RCR (Civil) 727] the Hon'ble Supreme Court has held as under :

"Stage of Consideration :

38. An application under Order XLI Rule 27 CPC is to be considered at the time of hearing of appeal on merits so as to find whether the documents and/or the evidence sought to be adduced have any relevance/bearing on the issues involved. The admissibility of additional evidence does not depend upon the relevancy to the issue on hand, or on the fact, whether the applicant had an opportunity for adducing such evidence at an earlier stage or not, but it depends upon whether or not the Appellate Court requires the evidence sought to be adduced to enable it to pronounce judgment or for any other substantial cause. The true test, therefore is,

-6whether the Appellate Court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced. Such occasion would arise only if on examining the evidence as it stands the court comes to the conclusion that some inherent lacuna or defect becomes apparent to the Court. (Vide: Arjan Singh v. Kartar Singh & Ors., AIR 1951 SC 193; and Natha Singh & Ors. v. The Financial Commissioner, Taxation, Punjab & Ors., AIR 1976 SC 1053).

39. In Parsotim Thakur & Ors. v. Lal Mohar Thakur & Ors., AIR 1931 PC 143, it was held:

"The provisions of S.107 as elucidated by O.41, R.27 are clearly not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak parts of his case and fill up omissions in the Court of appeal. Under R.27, Cl.(1) (b) it is only where the appellate Court "requires" it (i.e. finds it needful). ...... The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but "when on examining the evidence as it stands, some inherent lacuna or defect becomes apparent", it may well be that the defect may be pointed out by a party, or that a party

-7may move the Court to apply the defect, but the requirement must be the requirement of the court upon its appreciation of evidence as it stands. Wherever the Court adopts this procedure it is bound by R. 27(2) to record its reasons for so doing, and under R.29 must specify the points to which the evidence is to be confined and record on its proceedings the points so specified. The power so conferred upon the Court by the Code ought to be very sparingly exercised and one requirement at least of any new evidence to be adduced should be that it should have a direct and important bearing on a main issue in the case..." (Emphasis added) (See also: Indirajit Pratab Sahi v. Amar Singh, AIR 1928 P.C. 128)

40. In Arjan Singh v. Kartar Singh & Ors. (supra), this Court held:

".........If the additional evidence was allowed to be adduced contrary to the principles governing the reception of such evidence, it would be a case of improper exercise of discretion, and the additional evidence so brought on the record will have to be ignored and the case decided as if it was nonexistent....... The order allowing the appellant to call the additional evidence is dated 17.8.1942. The appeal

-8was heard on 24.4.1942. There was thus no examination of the evidence on the record and a decision reached that the evidence as it stood disclosed a lacuna which the court required to be filled up for pronouncing the judgment" (Emphasis added)

41. Thus, from the above, it is crystal clear that application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case, application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential/inexecutable and is liable to be ignored.

In the instant case, the application under Order XLI Rule 27 CPC was filed on 6.4.1998 and it was allowed on 28.4.1999 though the first appeal was heard and

-9disposed of on 15.10.1999. In view of law referred to hereinabove, the order dated 28.4.1999 is just to be ignored."

10.

In view of the above and the law laid down by the Hon'ble Supreme Court, the present revision petition is allowed and the impugned order dated 16.09.2021 stands set aside. However, it shall be open to the First Appellate Court concerned to consider the application under Order 41 Rule 27 CPC for leading additional evidence filed by the plaintiffrespondent herein at the time of the final decision of the appeal. 11.

It is made clear that any observation made herein shall not be treated as an expression of opinion on the merits of the case. 12.

Pending applications, if any, also stand disposed off. 19.12.2024 (ALKA SARIN) Aman Jain JUDGE NOTE:

Whether speaking/non-speaking: Speaking Whether reportable: Yes/No